Yet, in the background of almost every major debate lingers a conceptual distinction that could help strike consensus across a range of issues: the distinction between “intent” and “basis.” Intent asks: “Why this district?” Basis asks: “Why this person?”

The concepts intersect on the margins, but each plays a unique and distinct role in the “dilution v. sorting” question, the “race v. party” question, and the balance of powers question, among others. Moreover, the importance of this distinction goes beyond redistricting law—it could play a key role in forming a more coherent, simple, and rigorous voting rights framework at a time when it could not be more critical.

In the field of redistricting law, this distinction makes it possible to reduce a complex body of law into a relatively simple table (assuming the Court is willing to adopt both a political dilution claim and a political sorting claim, as I have advocated and as would address the concerns of the Whitford dissent).[3] [UPDATE: Aspects of this table have been eclipsed by more recent developments in the law.]

Below, I explain the basis/intent distinction further, how it resolves a number of redistricting law issues, and how it plays a critical role in preserving foundational principles of constitutional law in our democracy.

Basis and Intent

Redistricting law has developed into a complex and contradictory field, with even regular practitioners often stumbling on key holdings and concepts. One way to make more sense of this body of law is to carefully distinguish between the intent of the lawmaker (or the purpose of the law) and the basis upon which the lawmaker distinguished between citizens in crafting that law.

“Intent,” in the redistricting context, asks: “Why this district?” In the racial context, one might ask: was the purpose of the district to protect equal ability-to-elect for minority voters and comply with the Voting Rights Act (VRA); or was the purpose to discriminate against members of a racial group and assign raw racial advantage to one group at the expense of another? In the political context, one might ask: was the purpose to draw competitive districts, to achieve some kind of rough proportionality of representation, or to prevent drawing two incumbents into the same district; or was the purpose to dilute the votes of certain citizens and assign raw partisan advantage or a raw incumbency advantage for its own sake?

“Basis,” on the other hand, asks a different question: “Why this person?” In short, one asks: did the lawmaker assign this individual to this particular district based on the color of their skin or on their political affiliation? If a mapmaker uses racial census data to make a districting decision, then the basis is race. If the mapmaker uses election returns, voter registration, aggregated consumer behavior data, or other data bearing on the likely political preference of the voter to make a districting decision, then the basis is political.

This distinction may seem obvious, but the law’s treatment of it to date has been mangled at best. That is unfortunate, because it offers an important analytical lens for addressing some of redistricting law’s thorniest problems.

The Issues

Dilution v. Sorting

When the Supreme Court developed the “racial sorting” claim, it was clear to point out that the claim was “analytically distinct” from the existing “racial vote dilution” claim. As Justice Kennedy wrote in Miller,

“Whereas a vote dilution claim alleges that the State has enacted a . . . purposeful device ‘to minimize or cancel out the voting potential of racial or ethnic minorities,’ . . . the essence of [a racial sorting claim] is that the State has used race as a basis for separating voters into districts.”

In bringing such a claim, “[t]he plaintiff’s burden is to show, either through circumstantial evidence of a district’s shape and demographics or more direct evidence going to legislative purpose, that race was the predominant factor motivating the legislature’s decision to place a significant number of voters within or without a particular district.”

As Professor Hasen has stated, Miller shifted the Shaw inquiry from one simply focused on bizarre shapes to one focused on “legislative motive.” This motive, however, “was not a motive to engage in racial discrimination, but one of racial separation.” Yet, this reveals a fundamental problem: mapmakers do not engage in racial separation for its own sake. Thus, to speak of “motive” muddles the inquiry.

Over time, Miller’s discussion of “legislative purpose” began to slowly eclipse and obscure that which made the sorting claim “analytically distinct” from the dilution claim: the “use[] [of] race as a basis for separating voters” and the inquiry into the predominant factor driving “the legislature’s decision to place” certain voters “within or without a particular district.”

Today, judges, litigants, and academics shorthand the sorting inquiry by saying that courts should be looking for the “predominant purpose” of the district. Justice Thomas has long viewed this as the proper interpretation of Miller, but Justice Kennedy has withheld blessing this intent-driven view of predominance to date. See Alabama (noting that the decision “does not express a view on the question of whether the intentional use of race in redistricting, even in the absence of proof that traditional districting principles were subordinated to race, triggers strict scrutiny” (citing Vera (Kennedy, J., concurring))). Based on a recent hypothetical posed by Kennedy at the oral argument in Bethune, however, he may be coming around to this view as well.

Such a result would be unfortunate. If racial purpose is sufficient to trigger predominance, then the dilution claim will necessarily be subsumed. Dilution requires a showing of improper racial intent and improper racial effect; sorting, on the other hand, would require nothing more than showing that a law was adopted for a racial purpose, including a proper purpose such as compliance with the VRA. As discussed below, this “colorblind” reading of the constitution cannot be reconciled with the authority granted to Congress under the 15th Amendment to affirmatively prevent discriminatory voting practices.

Instead, as the Bethune court noted, “[t]he predominance inquiry examines the basis upon which voters were sorted into appropriately apportioned districts.” This focus on basis places Miller between one extreme view of sorting (the Shaw claim’s focus on “bizarre shapes” alone) and another extreme view of sorting (Justice Thomas’ focus on “but-for purpose” alone). To conduct this inquiry, one first examines whether the predominant basis upon which individuals were sorted was neutral (via the consistent application of geographic principles – Bethune’s “step one”). Next, one examines the evidence (including evidence of legislative purpose) to determine the basis-in-fact driving any deviations from (or inconsistent application of) these neutral criteria (such as race, party, or incumbency – Bethune’s “step two”). Notably, a district can be distinctly “non-bizarre” and still reflect a highly inconsistent use of neutral principles or a substantial deviation from neutral principles. In Bethune, HD 75 provides one such example.

Thus, distinguishing between basis and purpose could bring much needed clarity to the debate over the meaning of “predominance” and whether that interpretation threatens the meaningful distinction between dilution and sorting case law.

Race v. Party

The most important place to keep the basis/intent distinction in mind is when evaluating questions about the “race v. party” question. Many states, particularly in the south, reflect the phenomenon of “conjoined polarization.” This essentially means there is a strong “alignment of race, party, and ideology.” At this weekend’s symposium, Prof. Hasen will be discussing his most recent work on this important topic, which breaks the case law down into three categories reflecting three different approaches to the race/party question: “race or party,” “race as party,” and “party all the time.” The paper is a must-read for anyone interested in the state of redistricting law and how courts and commentators have sought to tackle the race/party conundrum.

Looking at the question through the basis/intent lens, however, we find crosscutting explanations for the case law and a way to resolve the problems that Hasen identifies with the “race as party” and “party all the time” approaches. For example, Hasen puts two distinct concepts (knowledge and basis) into one category (“race as party”). The cases adopting the “basis” view, however, are analytically distinct from the cases adopting the view that knowledge (or “consciousness”) of race alone can transform an action taken on a political basis into an action taken on a racial basis. Indeed, despite some pushback by the lower courts, the idea that knowledge can trigger liability would seem to remain foreclosed by the Cromartie rule.[10]

Properly understood, however, the Cromartie rule is not problematic from a basis standpoint and does not provide permission to legislatures to engage in political gerrymandering for partisan advantage. Instead, as the OneVirginia2021 brief in Harris notes, “[t]he Cromartie rule is straightforward and turns on the basis upon which voters were sorted into districts: gerrymandering based on political data is political gerrymandering; gerrymandering based on racial data is racial gerrymandering.” This rule, by its express terms, only permits legislatures to engage in politically-based line-drawing if that line-drawing is constitutional. See Hunt v. Cromartie, at n.7.

If we have two dilution claims and two sorting claims, with the latter prohibiting impermissible legislative uses of either basis (race or party), then partisan advantage justifications cannot act as an escape hatch for states that engage in unlawful racial gerrymandering and, inversely, parties need not “use racial gerrymandering [claims] to shadow-box over [partisan] issues.” The two lines of case law would act as effective backstops for each other, with the courts and the parties able to conduct honest inquiries into how both race and party have impacted the districting process.[11]
For this to be effective, however, the Supreme Court needs to begin harmonizing its racial and political redistricting case law. North Carolina’s history demonstrates the absolute impossibility of believing that racial redistricting case law and political redistricting case law can somehow be developed independent of one another. As Hasen points out, “The first attack on Shaw was a failed partisan gerrymandering claim, followed by a racial gerrymandering one. We now see [in McCrory] a racial gerrymandering claim preceding the partisan gerrymandering claim [in Harris].” To paraphrase Hasen, it blinks reality to treat racial gerrymandering and political gerrymandering as two unrelated questions of law. So long as there are two mirror-image sorting claims that can be brought to mutually reinforce each other, we preserve the ability to treat race and party differently as a matter of law in situations where there is not conjoined polarization and in adjacent fields of law where the distinction may be more important.[12]

Specifically, if the Court adopts twin sets of claims, this would allow us to reap the analytical and enforcement benefits of the “race as party” and “party all the time” approaches, while abandoning the “knowledge”-based version of the “race as party” approach (which may trigger VRA liability in some jurisdictions but not in others, despite the actual basis being party in both locations) and avoiding the drawbacks of a “party all the time” approach (which risks “lowering . . . the guard [protecting] the unique vulnerabilities still borne by minorities” and risks ignoring situations where the issue is, in fact, race and not just party). Thus, the basis/intent distinction offers an analytically rigorous way to resolve the doctrinal problems posed by the race v. party question.

14th Amendment v. 15th Amendment

Reading predominance to focus on basis rather than purpose also allows the Supreme Court to reconcile the commands of the 14th Amendment’s Equal Protection Clause with the 15th Amendment’s Enforcement Clause. The 14th Amendment cannot be read to prohibit the intentional use of race in redistricting without subjecting every state action to strict scrutiny. Because the 15th Amendment grants positive authority to Congress to affirmatively prevent discriminatory voting practices, such a standard of review is inappropriate.

It is not inconceivable that a more conservative Supreme Court might, in the coming years, adopt Justice Thomas’ intent-driven view of predominance and rely on that reading of the 14th Amendment to question whether Section 2 of the VRA is constitutional. If that time ever comes, the question put back to the Court must be whether such a reading of the 14th Amendment can be harmonized with the 15th Amendment. The distinction between basis and intent provides one way out of this bind.

Legislative v. Judicial

Finally, the basis/intent distinction ameliorates the balance-of-powers concerns raised by vigorous redistricting litigation. Focusing on intent in the dilution context and basis in the sorting context provides practical guidance and predictable application for legislators and mapmakers who are truly interested in drawing maps that comply with the Constitution and the VRA.

This also has benefits for the judges tasked with reviewing redistricting legislation. As Hasen has pointed out, a test focused on intent puts courts in a delicate position—they must “search for an impermissible legislative [purpose]: a difficult, if not impossible, task when examining the votes of a multimember body, but a task made especially difficult by the emergence of conjoined polarization between race and party.”

In fact, at oral argument in Bethune, the very first question put to the appellants by Chief Justice Roberts dealt with this problem: How does one gauge the predominant intent of a legislature that must comply with two mandatory rules? Allowing “intent” to drive the inquiry also leads to other fact-finding problems: What happens when a mapmaker prepares a plan and then submits it to the legislature for enactment? What is the “predominant purpose” of the legislature in passing the plan?

Looking to the basis-in-fact in sorting cases allows judges to conduct an inquiry that is far more narrow and verifiable. If a mapmaker bases deviations from neutral principles on racial data or information, then race is likely to predominate. Or, if geographic criteria are haphazardly strung together in pieces that predominantly track racial demographics (such that the district is not the result of the consistent application of neutral principles), then race is likely to predominate. This would remain so even if none of the legislators who passed the legislation had any particular kind of “racial intent.” The inquiry is simply to judge the predominant basis of classification. If the mapmaker employed race as the predominant basis-in-fact, the plan cannot be insulated from attack by outsourcing.

This gives legislators an administrable method for drawing plans, gives judges a predictable method for reviewing plans, and honors the balance of powers between the branches.

A Voting Rights Framework to Avoid the Blood Sport Republic

As the symposium’s attendees this weekend consider the future direction of redistricting law, they should keep in mind that the doctrines developed in this space are sure to spill over into related areas of the law. Hasen’s essay makes a vital contribution in this regard, tracing the interplay between the redistricting cases and voting cases.

One place where consensus remains strangely unsettled—both in the redistricting and voting cases—is what role “partisan purpose” plays in the analysis. Without agreement on this question, there is little room to build a coherent and consistent approach to redistricting law and election law more broadly. My recommendation is that this weekend’s attendees strongly consider putting the “partisan advantage” justification to bed once and for all. It is fundamentally incompatible with our system of constitutional democracy, has been wreaking havoc on the case law, and invites an unacceptable no-holds-barred blood sport approach to redistricting and voting legislation.

To be clear, no one should pretend that they can outlaw partisanship in general. This is neither possible nor desirable. But it’s also not the relevant question. There is a distinct difference between saying that vote-dilution plaintiffs, for example, must be able to show “a burden, as measured by a reliable standard, on [their] representational rights” (LULAC, Kennedy, J.) and saying that partisan advantage can constitute a legitimate state interest so long as it is not “excessive” or goes “too far.” The first is a legitimate question about how to measure harm and the evidence necessary to support liability; the second is a radical principle that undermines the conceptual foundations of constitutional law itself.

The suggestion that partisan advantage could be—in itself—a legitimate state interest “to some degree” represents a relatively new and incredibly dangerous turn in the law. The attempt to gain partisan advantage through the application of rational means towards legitimate, neutral governmental ends is the essence of how a constitutional democracy functions. The desire for political dominance underlies and animates all state action in a democracy. Yet, this desire must always meet the fundamental baseline for government action in a rule-of-law-based society: rational basis. This minimal but essential requirement channels the dogged fight for popular affection into rational government behavior; it harnesses “ambition against ambition” and puts the hunger for partisan advantage to productive use by requiring political parties to earn political dominance through legitimate measures that best serve the body politic.

By flirting with the idea that “partisan advantage” may be a “legitimate state interest” on its own, the Court invites disaster. Such a doctrine would sanction the application of reason-agnostic means towards achieving partisan dominance as an end in itself. In such a world, fundamental assumptions about our constitutional system of democracy begin to collapse. In such a world, representatives are entitled to use any means they deem necessary to insulate themselves against the will of the people—against democracy—so long as they do not go “too far.”

This is not judicial deference, it’s judicial abdication. And it deserves no quarter in our jurisprudence.

Entertaining this notion in the redistricting space over the past few decades has allowed it to slowly take root in the voting access space as well. In North Carolina, for example, partisans have begun “publicly urging” officials to “impose new schemes to limit access to the polls” because “making voting harder is just ‘partisan politics’—and that’s fair game.”[13] No. No, it’s not. This falls outside the scope of the Anderson–Burdick framework. “Partisan advantage” should not be an acceptable defense to racial claims under the VRA or the 14th Amendment and should constitute positive evidence of liability for political claims under the 14th Amendment. The differences between the permissible and impermissible state justifications in the table above are differences of type, not degree. An Attorney General would be unlikely to receive a warm reception if she stood up in open court and attempted to defend a voter ID law on the grounds that it would suppress the voting power of Democrats in the state and help Republicans win elections.[14]

To be sure, there are important questions of degree that would be raised in both political dilution and political sorting cases. But these questions—whether there is sufficient evidence of dilutive intent and effect to find liability (for dilution cases) or whether there is sufficient evidence of districting on a non-neutral basis to find predominance (for sorting cases)—are manageable questions that are routinely handled in racial dilution and racial sorting cases.

To set a clear path forward both in redistricting law and election law, the Court should firmly reject any suggestion that partisan advantage itself constitutes a legitimate state interest. And, with a keen eye towards distinguishing between questions of basis and purpose, the Court should adopt a parallel set of political dilution and political sorting claims to match those already found in the racial context.

[1] Disclosure: I served as a law clerk to the author of Bethune-Hill, Judge Robert E. Payne. I do not represent any parties in that case and the views below are my own.

[2] Disclosure: I served as counsel to an amicus in this case, OneVirginia2021: Virginians for Fair Redistricting. The views below are my own.

[3] This table constitutes my view of what the law in the field should be, given its unsettled state, and not my view of what the law currently is. Nothing in this table, post, or blog should be construed as providing legal advice or counsel. [UPDATE: Aspects of this table have been eclipsed by more recent developments in the law.]

[7] I have previously argued that the justification element in Whitford could be viewed as simply a part of the plaintiff’s burden of proof. Upon further consideration, this view seems wrong. Once a prima facie case has been established, the burden should shift to the state, consistent with the law in racial dilution cases.

[8] Dilution or predominant sorting on nonneutral basis must be reasonably necessary to achieve the permissible interest (i.e., use of race or party must have a strong basis in evidence). For political dilution and sorting, the permissible interest must be consistently applied.

[10] Ironically, both the “race as a proxy” rule and the Cromartie rule stand in tension with the kind of “intent-driven” approach advocated by Justice Thomas. For example, if a mapmaker uses racial data to draw a district that is intended to help elect a Republican or a Democrat, then the purpose of the district is political. The “race as a proxy” rule, however, points out that the sort is racial because the actualbasis of selection was race rather than party. On the other hand, if a mapmaker uses political data to draw a district and it is unclear whether the sorting was racial or political, the Cromartie rule states that a racial-sorting plaintiff must show evidence that the actual basis of selection was racial. See Hunt v. Cromartie (holding that a gerrymander based on party-sorting is political “even if it so happens that the most loyal Democrats happen to be black Democrats and even if [the State were] conscious of that fact”).

[11]SeeParsons, at n.332 (“[I]f a plaintiff brings a claim of racial sorting and a claim of political sorting, then the state should be estopped from arguing that a district has been constructed predominantly on the basis of discriminatory criteria—such as race, politics, and incumbency—but that the plaintiff has failed to prove which discriminatory basis actually predominated. If the plaintiff brings both claims, the state cannot argue that a district is predominantly both and therefore predominantly neither.”).

[12] Of course, if a plaintiff only brings a racial sorting claim, fails to bring a political sorting claim, and fails to object or amend the complaint when the state raises a “partisan advantage” defense, then the plaintiff risks losing the only claim brought. SeePersonhuballah v. Alcorn (Payne, J., concurring) (“Neither . . . in [Personhuballah] nor in Bethune–Hill did the Plaintiffs contend that gerrymandering for political purposes was unconstitutional. . . . Now, however, the Intervenors have said that, in fashioning a remedy, this Court is obligated to maintain the 8-3 partisan split in the Enacted Plan. To decide that contention, the Court necessarily must confront whether to effect a political gerrymander.”); see also id. (“It is one thing to find . . . that race was not shown to be the predominate reason for drawing the district; and, therefore, that the Plaintiffs did not prove the only theory of the case which they presented. On the merits, the Plaintiffs did not assert the alternate theory that the Enacted Plan was an unconstitutional political gerrymander, and it would have been improper for the Court to have decided the case on a theory neither raised nor tried.”).

[14] This is why I would critique hypotheticals like the “taxes” example advanced by Prof. Lowenstein in Vieth’s Gap. The question is not whether partisanship in general becomes unconstitutional when it goes “too far,” or whether a particular district boundary becomes unconstitutional when it deviates “too far” from a geographic norm on a political basis. A district can drastically abandon neutral principles and predominantly apply a political basis to achieve a legitimate interest, such as that found in Gaffney. See Vera (citing Gaffney). Instead, the question is whether the state can claim a legitimate interest in suppressing the effective exercise of the electoral franchise by a certain subset of the population because it does not agree with how they are likely to vote, or whether the state can classify a subset of the population on the basis of their political beliefs for this purpose. In the parallel taxation hypothetical, the question then becomes not whether taxes are “too high,” but whether taxes were increased for registered Republicans only, or whether taxes were raised on certain, limited areas throughout the state and evidence suggested that it was done with the intent of rendering members of a certain political party weaker. To accept this as legitimate, one must be willing to embrace the counter-hypothetical: a state Attorney General standing up in open court and declaring, “Yes, Your Honor, we specifically raised taxes on these households because they contain Republicans and we wanted to weaken their ability to wage an effective campaign against us at the next election. Our state interest was partisan advantage.” This is also why “excessiveness” has no real role in this question. Putting aside the “money as speech” aspect of this hypothetical for a moment, the Attorney General’s answer would not be any more satisfactory if she then added, “But Your Honor, we surely haven’t raised taxes on the targeted Republican households too far.”